Suggestions of capacity and why they don’t work

We began asking about questions guardianship many years ago. Many have been discussed on these pages. Each of us has tried to understand how what is so obviously a racket can flourish and metastasize in a country like America. Every one of our thousands of known victims has struggled to comprehend how their loved ones could be so abjectly abused by a system allegedly designed to protect them. Abused, isolated, exploited and neglected lonely seniors no doubt wonder why their families have been forced to stay away from them and why they have been prevented from giving comfort and assistance to them in their darkest hours.

I speak to dozens of new victims every month. Their stories are alarmingly similar. The calls come from all walks of life, involve all ages, every level of the socioeconomic strata, at every level of education from high school dropouts to Physicians, lawyers and professors and even an occasional judge’s family.

These desperate individuals call our organization hoping to find someone who is sympathetic and understands what they’re going through and might be able to give them an idea of where to look for help.

They often ask about where to find a good lawyer, one they can trust. They ask why the Guardian is treating them so badly. They ask why their judge is so unalterably negative towards them. They ask whether they should represent themselves pro se because they’re becoming bankrupt from legal fees from their own lawyer. They ask if they will ever see their loved one again. Often they tell me that they are hopeless and depressed, bankrupt and without hope. They uniformly tell me that the guardianship process has caused them to lose faith in America and even their religion. Many wealthy callers believe that they would be able to beat the system because they had extensive or even unlimited resources to do so. They hire the most expensive lawyers and then watch as they uniformly fail to achieve release for the wealthy person’s loved one all the while billing at a furious clip at an inflated rate. They fail uniformly. The racket makes it very easy to become a Ward.

What about getting capacity back?

To date it has proven to be impossible to develop a formula or game plan that reliably results in the likelihood of the release of any word in any state back into capacity, let alone their actual restoration capacity. Regaining capacity is supposed to be much easier than being called incapacitated, at least that’s what the statutes say. But there are powerful roadblocks and disincentives for the racket to allow even a single person out of their shackles.

On paper and in the statutes it Ward has an absolute right to be heard in court with what is called suggestion of capacity. The court is mandated to expedite those hearings and to assure that examinations take place in a timely fashion and that reports are handed over to the court in a very short timeframe, presumably to assiduously process an urgent request to be released from guardianship by the ward.

Here are the roadblocks to a successful suggestion of capacity;

  • Examiner Bias-I have heard examiners say they will not re-examine suggestions of capacity because it makes them look bad for having rendered them incapacitated in the first place. Additionally, there is an issue of compensation for re-examination’s that is not covered in most statutes the payment is not guaranteed for such exams. The heightened scrutiny that would be applied to such examination by lawyers for the Ward whether court appointed or not tends to make these exams more taxing on the examiner, more time-consuming and therefore less attractive for the examiner. Often times smaller counties claim the only examiner available is the one who initially cleared the incapacity and there are no other choices. The very short timeframe to complete and report on examination is always a disincentive for examiners who only wanted to cases at their leisure.
  • Legal fees- wards have no money and their families are often wiped out from legal fees. Basic suggestion of capacity and the ensuing hearings and proceedings will entail significant legal bills which are of course automatically court approved and a burden on an already burdened family.
  • Loss of right to sue– wards usually lose all their rights including the right to sue enter into contracts or choose their representation and as such cannot hire an attorney of their choice to represent them
  • The only way a ward in that position can submit a suggestion of capacity is through the very Guardian who profits so greatly from the guardianship. This conflict of interest alone short-circuits many attempts before they are even started.
  • Judges do not like to be questioned or shown up. They cannot admit they erred. They do not like uppity lawyers who think they know more than they do (even if they do). They are commonly very lazy and do not want to have more work; they do not want to be bothered with new laws. They treat elderly and especially wards with disdain and contempt. They do not wish to disturb their cozy relationships with the lawyers and guardians who helped elect them and who provide them with other special favors.
  • Lawyers know that a suggestion of capacity hearing will only waste their time as the outcome is typically predetermined and the amount of fees they can bill for their services in protecting the Guardian which is whom they represent will be far less lucrative than in a new case which can go on forever. They would much rather spend their time creating new wards. That is why they will object whenever they can to anything they can think of to delay and stall since they know every wrinkle of the law and the system and will use it against anyone who dares to want to rejoin society against their wishes.
  • Facility owners and managers view their residents as their property and their income stream. They have no incentive to see that ward and the income stream she produces leave their facility so they place obstacles in the way of anyone wishing a suggestion of capacity hearing including restricting visitation, taking away computers and cell phones, and totally isolating individuals from any sources of assistance legal or otherwise.

Ultimately the decision about whether a person should or should not be a ward should be based on whether she is or is not incapacitated. But our experience shows that the racket is perfectly happy to ignore solid evidence of capacity and instead confabulate reasons to continue to keep the ward in captivity that have nothing to do with how the Ward does on the capacity examination. More than merely preventing an exculpating capacity examination from taking place, the racket and especially the judge can ignore the findings of the examination if he so chooses, retaliate against Ward and lawyer representing the Ward (including threatening to jail the lawyer for contempt of court (as has been seen on multiple occasions in Florida and Illinois and presumably other places) or a myriad of other tricks and legal maneuvers to defeat even the most well-crafted suggestion of capacity request.

As we mature as advocates, we now turn our attention to rendering assistance to those wards who have found us  or that we have found seeking to terminate unjust guardianships.

It is my sincere hope that AAAPG with the help of partner organizations like FACT, NOW and others will be able to advocate for the release of exploited innocent wards.